JUSTICE GARMAN delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Karmeier and Theis concurred in the judgment and opinion.
Justice Freeman dissented, with opinion, joined by Justice Burke. Justice Thomas took no part in the decision.
¶ 1 Plaintiff, Annette Simpkins, filed a three-count complaint against defendant, CSX Transportation (CSXT), alleging negligence, wanton and willful conduct, and strict liability for her exposure to take-home asbestos on the clothing of her husband, who worked for defendants from 1958 to 1964. Annette Simpkins died of mesothelioma and her daughter, Cynthia Simpkins, was substituted as the plaintiff as the special administrator of Annette's estate. The circuit court of Madison County granted defendant's motion to dismiss (735 ILCS 5/2-615 (West 2006)). The appellate court reversed and remanded the cause to the circuit court. We granted CSXT's petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Feb. 26, 2010)). We affirm the appellate court's reversal of the trial court's judgment but hold that the allegations in plaintiff's complaint are insufficient to establish that defendant owed a duty of care to Annette. We remand the cause to the circuit court to allow plaintiff to amend her complaint.
¶ 3 On January 19, 2007, Annette Simpkins filed a complaint in the circuit court of Madison County, alleging she had contracted mesothelioma cancer due to exposure to asbestos from various sources. Her complaint named over 70 defendants, including her former employers and former employers of her family members, and manufacturers, sellers, distributors, and installers of asbestos. Relevant to this appeal, she alleged that her inhalation of asbestos fibers brought home on her former husband's body and work clothes during their marriage was a direct and proximate cause of her illness. She alleged that her husband, Ronald, while employed by defendant from 1958 to 1964, was exposed to asbestos fibers emanating from asbestos-containing materials and raw asbestos present and being used at defendant's premises. Ronald carried these fibers home on his person and clothing, and Annette was exposed to and inhaled, ingested, or otherwise absorbed these asbestos fibers. Further, Annette alleged that defendant knew or should have known that exposure to asbestos fibers posed an unreasonable risk of harm to her and "others similarly situated."
¶ 4 The complaint alleged three bases for liability against defendant*fn1
strict liability for engaging in the ultrahazardous activity of using asbestos-containing products and raw asbestos in their plants so as to cause the release of asbestos fibers (count VII), negligence for failing to take precautions to protect Ronald Simpkins' family from take-home asbestos exposure (count VIII), and willful and wanton misconduct (count IX).*fn2
¶ 5 On February 28, 2007, defendant filed a motion to dismiss the three counts of the complaint against it pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2006)).
Defendant argued that, because "[e]mployers do not owe any duty to a third-party, non-employee, who comes into contact with its employee's asbestos-tainted work clothing at locations away from the workplace," it owed no duty to plaintiff and, therefore, no liability can be imposed upon it. Defendant attached to its motion a memorandum of law citing similar cases from other jurisdictions.
¶ 6 On April 2, 2007, Annette Simpkins died. On May 2, her daughter, Cynthia, was appointed the special administrator of Annette's estate and was later substituted as the plaintiff here.
¶ 7 On May 18, 2007, the circuit court heard arguments on defendant's motion to dismiss. In opposition to the motion to dismiss, plaintiff filed a 21-page memorandum accompanied by 84 pages of supporting documentation and affidavits. Concluding that plaintiff's arguments regarding duty "sound[ed] like a great argument for the Supreme Court," the circuit court allowed the motion to dismiss and granted plaintiff an interlocutory appeal on the issue. The court also severed the claims against CSXT from plaintiff's claims against other defendants.
¶ 8 On appeal, the appellate court noted that all three counts involved allegations that the risk of harm to Annette Simpkins was foreseeable. 401 Ill. App. 3d 1109, 1112. The parties did not distinguish the three counts, so the appellate court discussed them together. Id. After thoroughly discussing the principles of duty, the appellate court held that plaintiff's complaint "sufficiently states a cause of action to establish a duty of care" owed by defendant to plaintiff. Id. at 1120.
¶ 9 This court allowed defendant's petition for leave to appeal pursuant to Supreme Court Rule 315 (Ill. S. Ct. R. 315 (eff. Feb. 26, 2010)).
¶ 11 Defendant argues that because it had no direct relationship with Annette Simpkins, it cannot be liable for her injury. Because Annette was not defendant's employee, never visited its premises, and was not a vicarious beneficiary of any duty defendant owed her husband, defendant asserted that it owed Annette no duty. Plaintiff argues in response that defendant created the risk of harm at issue and, in such a case, a ...